Whether power of attorney valid through registered will

Querist : Anonymous (Querist) 09 April 2020 This query is : Resolved
I have come across a peculiar case wherein. The Executant aged about 85 years has issued a Registered Power of Attorney in favour of his Company Manager to look after all company related issues/Settlements etc and the Executant has also made a WILL stating that even after his death the Attorney holder should act according to POA without any 3rd party intervention or from any family members and the Executant also prefers that the Power of Attorney should be in Force even after his death which is clearly mentioned in the Registered WILL. Since the Executant prefers to have Validity of POA even after his death... whether the Attorney holder can exercise his powers as per POA and WILL even after the death of Executant ?

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This discussion examines whether a Registered Power of Attorney (POA) remains valid after the executant's death, particularly when a Will specifies its continuation. Generally, a POA legally lapses upon the death of the executant. However, if the Will reiterates the terms of the POA and names the POA holder as a beneficiary, the Will's provisions will govern the estate. The POA holder might need to seek probate for the Will to legally act on the estate, with the court interpreting the Will's clauses, including those referencing the POA.

KISHAN DUTT KALASKAR (Expert) 09 April 2020
Dear Sir,
with or without a will, the probate court will grant the authority to act on a deceased person's estate to an individual who might or might not also be the agent under the power of attorney. The two roles are divided by the event of the death. In some cases, however, the agent in the POA might also be named as executor or administrator of the estate.

You would continue to have authority over the deceased's bank accounts and other assets if you're also named as the executor or administrator, at least until ownership can be transferred to living individuals.

Hemant Agarwal (Expert) 09 April 2020
CONSIDER THIS:
1. An "registered" POA shall continue to operate for any immovable transaction, PROVIDED it is for a continuing business transaction. IF POA is not stamp duty paid (500/-) and duly registered before the local SRO, THEN such POA is legally null & void.

2. Under other circumstances, POA shall legally lapse, on death of POA executor. A WILL document of deceased POA executor, furthering cause of POA, shall be invalid and a WILL document cannot be used to provide "continuing" legal standing to POA holder.

Keep Smiling .... Hemant Agarwal
VISIT: www.chshelpforum.com

kavksatyanarayana (Expert) 09 April 2020
Yes. Even though there is a clause regarding POA in the Will, under any circumstances the POA is not valid after the executant of the Executant cum Testator.

Raj Kumar Makkad (Expert) 09 April 2020
There is no requirement to repeat that Power of Attorney loses its legal value on the death of either of the testator or its holder but in the present matter, the testator/executant has made a will in favour of the beneficiary, who coincidentally is also holding the power of attorney of the testator. The terms of the will can independantly be declared by its testator as per his free whims and wishes which he has mentioned as of contained in POA. So even though on the death of testator, POA shall have no value but will shall come out and when it shall be interpreted, the terms of POA only as part of will, shall be taken into consideration.

Rajendra K Goyal (Expert) 10 April 2020
POA comes to an end at the death of testator or the POA holder.

After the testator the assets of the testator would move as per will.

After him, the POA holder can not have any say in the affairs belonging to deceased now moved as per will specially when POA comes to an end after death of principal..

T. Kalaiselvan, Advocate (Expert) 12 April 2020
I think the views and opinion expressed by learned expert Mr Makkad are agreeable.
As far as the Will is concerned, the bequest made or it has been recited recognizing the POA agent and the testator wished the agent to continue with the POA deed in terms of the said deed,therefore it may not be said that the Will insofar as this particular clause is concerned can be held invalid, if at all the beneficiary i.e., the POA AGENT HAS ANY DOUBT ABOUT IT he can very well apply for grant of probate of Will and also produce the registered POA deed to support his claim.
Let the court decide about its validity.

Dr J C Vashista (Expert) 13 April 2020
I concur with the experts advise.
PoA and Will are two different independent documents. PoA expires/ lapse with the death of granter. Whereas Will comes to operate after death of testator.
In the instant case the agent / attorney and beneficiary of will is the same person hence there will not be any problem.

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